Menu Labeling: Good for Consumers, Bad for Restaurants?

March is the Academy of Nutrition and Dietetics’ National Nutrition Month, and it comes at a time when nutrition, or at least information about nutrition, is very much on the minds of many restaurant operators. New federal menu labeling laws expected to take effect next year require chain restaurants to post calorie counts for each item on printed menus and menu boards. That follows a series of newly enacted local-level rules that require chain restaurants within those jurisdictions to follow similar rules.

Backers of these measures tout them as a way to help consumers make more health-conscious choices, but opinions are strong on each side about how far restaurant operators should be expected to go to disclose nutrition info. Here’s a rundown of some of the latest developments in the menu labeling debate.

Local Labeling Laws

At the end of February, the New York State Supreme Court upheld a New York City Board of Health rule requiring restaurant chains with 15 or more locations to print warnings on their menus next to items containing 2,300 or more milligrams of sodium, the FDA’s maximum recommended daily intake. That ruling came out of a lawsuit filed in December by the National Restaurant Association on the basis that the requirement places an undue financial burden on operators who must foot the bill to obtain the sodium contents of each of their items and update their menus. On March 8, just a day before those rules would take effect, a New York State appeals court put a temporary stay on the law.

The new salt-labeling rules are the latest in a decade-long war waged by the City of New York to force chain restaurants to disclose their menu items’ nutritional information in a way that’s all but impossible for patrons to ignore. The opening salvo in that war came in 2006, when the NYC Health Department amended the city’s health code to require restaurant chains to display calorie counts on printed menus and menu signs. After two lawsuits filed by the New York State Restaurant association, partially on the basis that the rules violated First Amendment protections, the law was made permanent in 2008.

King County, Washington, of which Seattle is county seat, adopted a measure similar to New York’s in 2008 that requires restaurants with 15 or more locations and $1 million dollars or more in annual revenue to provide calorie, saturated fat, carbohydrate, and sodium information for each menu item. Calorie counts were also mandated on menu boards, with the other data available upon request. Full-service restaurants are required to include all of that information on printed menus or by “other approved alternative method.”

Those are just a few prominent examples that are part of a national trend towards menu calorie labeling. Similar measures have been passed in California, Massachusetts, and Oregon, in addition to local codes in Philadelphia and Nashville. The Center for Science in the Public Interest has prepared a map showing each state’s menu labeling requirements.

The Debate Goes National

Each of those local laws helped set the stage for the federal law set to take effect in 2017. The new national law is an amendment to the Federal Food, Drug, and Cosmetic Act made with the passing of the Affordable Care Act, referred to colloquially as Obamacare. It affects restaurant chains and other foodservice venues that have 20 or more locations operating under the same brand. A summary of the law is provided on the FDA’s website:

“Covered establishments will list calorie information for standard menu items on menus and menu boards and a succinct statement about suggested daily caloric intake. Other nutrient information—total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein—will have to be made available in writing on request.”

— FDA’s Overview of Menu Labeling Requirements for Restaurants

The new rules were originally set to take effect in December 2015, but were pushed back in the summer of that year to the end of 2016 and once again in the middle of March. Now, the rules are set to take effect a year after the FDA issues its final guidance to the industry, which is expected to happen by the end of summer. These new rules will also apply to other foodservice venues, including coffee shops, movie theaters, convenience stores, ice cream shops, and many grocery stores. Another clause in the amendment requires vending machine operators with 20 or more machines in operation to display calorie counts for items served by the machine.

The latest development in the war over restaurant menu labeling came at the end of February when the U.S. House of Representatives passed a “Common Sense Nutrition Disclosure Act”. If that bill were to make it into law as it is, it would amend the new federal rules to allow businesses to define their own serving sizes, a practice that opposition claims would make it easy to deceive patrons into thinking menu items are less calorie-dense than they are. The bill would also let businesses that sell most of their food through carryout off the hook, requiring them only to make the nutrition information available online. Additionally, it would protect restaurants from being sued by consumers for failure to comply with labeling laws.

The Restaurant Industry Fights Back

These new federal laws have generated a good deal of controversy among restaurant owners and other industry professionals who claim that the laws will place a financial burden on restaurants who will have to redesign their menus. Still, a study published in 2015 suggests that menu labeling can have an effect on the choices people make, persuading them to choose options that they perceive to be more healthy based on the calorie counts presented. The Academy of Nutrition and Dietetics “strongly supports” the FDA’s new rules, according to a statement issued in 2014. The Academy’s then-president Sonja L. Connor said, “Menu labeling is an important step forward in helping address our obesity epidemic.”

In 2011, on behalf of their hundreds of thousands of member restaurants, The National Restaurant Association and the National Council of Chain Restaurants made several requests for alteration and clarification of the FDA’s original rules, including, among other requests, that they:

“Adopt a definition of ‘menu’ that does not impose unnecessary costs on participating restaurants and establishments”, and

Draft a more specific definition of “standard menu item”

In September 2015, the FDA issued a supplemental draft guidance document aimed at clarifying some of the ambiguous requirements set forth in the original copy. Among the highlights that addressed some of NRA’s 2011 requests is a table that lists many common establishments and whether they’re covered by the rule, listing C-stores and movie theaters as covered establishments. On the topic of materials that require labeling, the guidance declared that a menu can be considered “writing [that] can be used by a customer to make an order selection at the time the customer is viewing the writing,” bringing a number of marketing materials, including promotional flyers and coupons, under the definition of “menu” and requiring that they list the calorie information. The guidance also issues a list of food items that covered under the law, in addition to some that are exempt.

In a November 2014 statement on the FDA’s finalized regulations, the NRA issued a statement saying, “We believe that the Food and Drug Administration has positively addressed the areas of greatest concern with the proposed regulations and is providing the industry with the ability to implement the law in a way that will most benefit consumers.”

No matter what your opinion on restaurant menu labeling laws is, they only highlight the growing demand on the part of consumers to be better informed about what’s in food. If your eatery is exempt from the impending Federal rules, but you still wish to comply with the rules as a service to your customers, the FDA has prepared a “Small Entity Compliance Guide” that outlines non-binding best practices instructing owners how to go about labeling their menus. Voluntary registration is free and must be renewed every two years. Because Federal law preempts state and local laws, compliance with these rules may exempt restaurants from certain local rules.

A dedicated festival-goer, Tanner West has seen more bands perform live in the middle of hay fields and city parks than most people have probably heard of. Raised on beans and taters, he recently renovated a home and three vintage sheds in the back woods of East Tennessee that serves as a quiet retreat for reading and ready base for hiking and camping trips. Despite being able to craft 500-word descriptions of restaurant equipment, Tanner is a man of few words who described the best meal he ever ate in one word: Coffee.